Superheros and alter-egos

Bruce Wayne is Batman. Clark Kent is Superman. Tony Stark is Ironman. Peter Parker is Spiderman.

And so it goes. Throughout the various multiverses, numerous superheroes have maintained alter-egos, either to protect their “normal” lives and loved ones or to disguise their true natures. Sometimes both.

Either way, the idea of an alter-ego comes with certain legal complications, as has been recognized long before the publication of the first comic book. In Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde, first published in 1886, one of the main plot drivers is Jekyll’s pains to ensure that he maintains access to his property when he changes into Hyde. This largely took the form of instructing his servants to pay heed to Hyde and executing a will leaving everything to Hyde should Jekyll disappear.

Legally, there is no reason Jekyll could not do this. The fee simple gives a property owner the right to dispose of his property in any legal way that he sees fit. The problem is not that Jekyll’s design was illegal, but that it was unusual, to the point that people noticed something was up. Indeed, it was the very attempt to create and maintain this alter-ego which led to the discovery of his dual identity. If Jekyll/Hyde had been content to live two entirely different identities with no overlapping property or affairs, i.e. if Hyde had been willing to forego all of Jekyll’s advantages, the story could have ended quite differently.

So the problem is not only in the creation of an alter-ego, but doing so within the bounds of the law in ways that will maintain the integrity of the illusion. Both of these will cause problems on a number of levels.

I. Legal Status

The relationship between one’s “mundane” and “masked” identities is significant. If one starts life as a mundane person and then acquires a masked identity, e.g. Bruce Wayne becoming Batman, things are fairly straightforward, as one already has a full-fledged legal identity. But simply creating a new person out of whole cloth, as one would need to do if one were creating a new cover identity or faking one’s own death, is more difficult. Governments do this for people on a regular basis for things like witness protection programs, espionage, undercover operations, etc., but there are two main facts about this which present problems for our superheros. First, government-created identities are obviously created with government approval, so no laws are being broken. Second, these identities are rarely intended to be used either for significant transactional purposes or for very long, i.e. they are not intended to fully or permanently replace the original identity.

The basic problem then is that to create a new identity without government authorization requires the commission of a number of felonies, potentially including making false immigration statements (18 U.S.C. 1015), identification document fraud (18 U.S.C. 1028), perjury (18 U.S.C. 1621) and numerous related offenses under state law. And trying to live in contemporary society without such documents will be very, very difficult. One cannot buy a car, rent an apartment, get a checking account, or engage in a host of transactions essential to the logistics of mundane life without some form of government identification, identification which a superhero wanting to create a new mundane identity for his masked persona would need to forge. Creating successive false identities all but requires one to engage in illegal activities. So much for being a law abiding citizen.

All of these may seem trivial, but Al Capone was eventually brought down, not for racketeering or the St. Valentine’s Day Massacre, but for simple tax evasion. And if the illegality is not problem enough in its own right, these sorts of illegalities do tend to attract enough attention to make maintaining a secret identity pretty difficult, particularly if one wishes to maintain some kind of base-level commitment to law and order.

II. Money Laundering

Speaking of taxes, transferring large sums of money without a paper trail is difficult to do legally. Money laundering is a federal offense, and suggestions of financial shadiness tend to attract the attention of prosecutors. Jumping through offshore banks is no guarantee of secrecy: the discipline of forensic accounting exists almost solely to analyze patterns of financial transactions for irregularities. Even cash transactions are no solution, as transactions over $10,000 must be reported to regulators and paying for anything more than $500 with cash will be reported as suspicious. So while the money being “dirty” in some sense, i.e. representing the proceeds of or being used for some unlawful activity (18 U.S.C. 1956) for disguising the origin and ownership of funds to be a felony, simply the attempt to disguise it is likely to raise red flags all over the place, because most of the people engaged in that sort of activity are doing so for nefarious reasons. If our superhero or an artificial “mundane” persona is going to need to spend any money, this poses problems of the sort which could easily trigger an IRS audit. As the Joker observed at one point, “I’m crazy enough to take on Batman, but the IRS? No, thank you!” So again, it seems that our some of our heroes are faced with a difficult choice: maintain their secret identity or live within the bounds of the law, but even breaking the law in this way is no guarantee of success.

III. Evidence and the Sixth Amendment

Unfortunately, unless a hero plans to kill every villain with whom they come into conflict, bringing said villains to justice is actually made a lot more difficult the more a masked hero is involved in the case. It turns out that wearing a particular costume or uniform, which is how superheros and villains are normally identified in comic books, does not actually count as evidence that the person wearing them is, in fact, the same person all the time.

This is significant, because the Confrontation Clause of the Sixth Amendment reads “[I]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” The goal of the Confrontation Clause, as stated by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), is to “preserve reliability of evidence” by establishing procedures so that “reliability [may] be assessed in a particular manner: by testing in the crucible of cross-examination.”

A witness whose identity cannot be definitively established would likely be useless as a witness. Courts and legislatures have made exceptions to the Confrontation Clause for situations like child witnesses against their abusers, but these are mostly limited to permitting the child, visible to the court, to testify via closed-circuit TV so that they do not have to see the accuser. There is no precedent to suggest that an essentially anonymous person or a person operating under a known or obvious alias would be permitted to testify in court without revealing their actual legal identity. A clever defense attorney could easily point out that we don’t even let witnesses in the witness protection program testify in open court while disguised; why should we let a superhero?

The Sixth Amendment aside, it is not clear that the Federal Rules of Evidence would permit a masked person to testify at all. Federal Rule of Evidence 602 reads, in part, as follows:”A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” It will be much more difficult to prove that a masked person was a witness to a particular event when there may be no evidence that the masked person on the stand is the same masked person who allegedly saw what he claims to have seen. It is common practice for attorneys to ask a few simple questions such as name, address, age, etc. to establish a witness’ identity before proceeding to elicit testimony. Such questions would be impractical for a masked person to answer without revealing their identity, and a refusal to do that might well cause a judge to exclude their testimony entirely. Again, we don’t let traditional witnesses disguise themselves, and there isn’t any obvious legal reason that a superhero should be an exception to that rule. As the FRE apply to both criminal and civil cases, so this could be a problem even when the Sixth Amendment does not apply. Something like Peter Parker taking pictures of Spiderman’s exploits might help, but again, someone needs to be able to testify as to the veracity of those pictures, and that would mean testifying about their origin under oath.

This is a legal problem inherent to the maintenance of an alter-ego of any sort. Even a person who starts life as a mundane and then dons a mask to fight crime will run into this.

IV. Conclusion

So creating a superhero creating an alter-ego is a bit more legally complicated than it might seem. In addition to the problems of actually creating one in the first place, the logistics of maintaining the persona are significant, especially when trying to do so legally. But even the simplest alter-ego, the normal person who occasionally fights crime as a masked crusader, will run into legal problems if they are called to testify to what they have seen.

36 Responses to Superheros and alter-egos

  1. I agree that, in some cases, the 6th Amendment issue might apply where the superhero refuses to testify, but only when there are no other witnesses who can prove the same facts. The main problem with many supervillains is not the want of evidence, but lack of power in the executive to apprehend the target of their investigation. But that’s the problem solved by the superhero. Only rarely is the hero responsible for anything as mundane as evidence gathering, which can be done after the fact by law enforcement.

    Of course, nothing really prevents the judiciary or the legislature from creating special rules of evidence to deal with superheros. There are exceptions to Crawford and its progeny such that if the defendant prevents their accuser from testifying, the defendant is deemed to waive the right to confrontation of that person. Similar judicial rules might be created to deal with superpowerful villains and their masked accusers, including in camera interviews to establish the identity of a hero. Even without such rules, many heroes would still be able to prove their identity without exposing their alter ego simply through a demonstration of power.

    • Actually, I’d see the lack of superhero testimony as something of a larger problem. It seems that a lot of times only the hero has adequate testimony both as an eyewitness and to substantiate critical forensic evidence. Simply giving the cops the needed forensics is going to be insufficient, because “Some guy gave it to us” is not going to establish the necessary chain of custody.

      And I think that the Fourteenth Amendment requirement of Equal Protection and Due Process would make laws giving superheros special exemptions problematic. Perhaps that’s fodder for another post.

      • The Venture Bros. made fun of this point when Captain Sunshine decided to literally throw the Monarch in jail. The Monarch returns shortly their after noting due process, Captain Sunshine not being a state actor, etc.

      • Perhaps it could work if Batman established himself as Commissioner Gordon’s Confidential Informant (CI)?

  2. Going based off of the movies, I would assume that Iron Man and War Machine would just be like a police officer putting on a uniform.

    So if Bruce Wayne outed himself as Batman would anyone be able to go back and charge him for anything that hadn’t already elapsed the statute of limitations?

    Also, what if a super hero died while on the job? Undoubtedly someone would pull the mask off. So would the estate be responsible for anything?

  3. Maintenance of a secret identity, obtaining government documents (legally) and so forth is not difficult. There are loopholes in the law that allow and practically encourage illegal immigrants to live just as easily as Batman and so forth. So the argument that there is a barrier to a secret identity holding government documentation and able to operate in society ignores the vast evidence of millions of non-Americans doing the same at the present time.

    Also, unless your alter-ego is hardly under your control, such Mr. Hyde or The Hulk, you can conduct most of your business under your normal identity. For example, the Bat Man does not drive up to Citgo to gas up the Bat Mobile. Bruce Wayne, we can suppose, has fuel shipped by truck to Wayne Manor and shares the same storage tank (see the New York Fuel Gas Code [2006], section 301 General Regulations for details on how to do this) with The Bat Cave. The legality of the addition, the fact Wayne estate is not paying taxes on the value added to the main structure, etc. are another issue entirely. For all I know, the Wayne Estate has filed for proper building permits and has had the site inspected and registered with the deeds office in downtown Gotham.

    What one can say about “secret identities” is that responsibility instantly commutes from the secret identity to the true identity. If The Bat Man hires a prostitute for sexual congress, Bruce Wayne is responsible for the Class A misdemeanor and 1 year in jail and/or up to $1,000 fine.

    In the case of The Hulk, should he sign with a witness a contract that Dr. Banner later finds to be unacceptable we have an interesting clash between identities. It won’t be possible to have both parties in court at the same time even though they share the same body. Also, currently, California courts frown upon someone suing themselves. This may change under the new administration of “Governor Moonbeam.” but at present time the court is faced with a dilemma of granting Dr. Banner access to the justice of the civil courts with the impossibility of having Dr. Banner and Hulk in court at the same time. Though this may change as Dr. Banner’s frustration at the situation increases, ahem. There are logistical issues with deposing Hulk and of course it can be expected he (Hulk) would like to be in Court and not simply just represented by counsel.

    • The problem with the “But illegal immigrants do it all the time!” argument is that 1) Bruce Wayne owns stuff; illegal immigrants don’t, and 2) Bruce Wayne isn’t all that mobile; illegal immigrants tend to move around a lot to avoid protracted contact with officialdom. Both of these conspire to make simply living completely off the grid a bit harder than it sounds. Wolverine can probably maintain it with his lifestyle–living in a van down by the river, as it were–but anyone who wants to live in a house that they own will find this to be more difficult. And many illegals are willing to drop everything and move across the country at the first hint that the authorities might be on to them, which would make keeping an eye on Gotham kind of difficult. In short, while it is possible to live completely “off the legal grid,” it’s really, really hard to live a non-impoverished, normal life while doing so.

      Making alter-egos actually multiple personalities does add a fun wrinkle to the situation though.

      • re “illegal immigrants don’t [own stuff]” — that is completely untrue; many undocumented US residents own significant property, including cars, businesses and houses.

      • Ryan Davidson

        many undocumented US residents own significant property, including cars, businesses and houses

        Really? I mean, I’m sure tons of undocumented people “own” property in the sense that they’ve paid for it and possess it. But that’s not really enough for what we’re talking about.

        Cars and houses are both types of property the ownership of which is publicly tracked. The strongest evidence you can offer that you own one is producing the title/deed and matching it with public records. So an illegal immigrant who pays someone $500 for a car probably does “own” the car in a moral sense, but legally that’s going to be pretty tough to prove.

        Real property is even more stringent. In the absence of a recorded deed, it is going to be very, very difficult to demonstrate legal ownership of real estate. Even worse, verbal contracts for the sale of land contradict the Statute of Frauds, which is still part of most states’ legal system. So an illegal immigrant may have a moral right to a house that he buys, the legal right is going to be difficult to establish.

        Ownership of businesses is another problem area, because it isn’t like illegal immigrants go around creating business entities for their use. No, they’re mostly, I assume, running sole proprietorships or unincorporated partnerships where the business isn’t legally distinct from them. The “business” is thus mostly an ad-hoc, seat-of-the-pants arrangement. This works fine for more-or-less menial service jobs and even light construction, but it’s basically impossible to run a non-fly-by-night operation this way for any significant length of time. You’re going to need insurance, if nothing else.

        None of these are problems if your main goals are making more money than you could at home and you’re willing to sacrifice stability and legality. But if your goal is establishing a more-or-less permanent residence supported by significant financial holdings, this gets orders of magnitude harder, especially if you feel some kind of moral burden to operate within the bounds of the law.

      • Roland Dreier

        many undocumented US residents own significant property, including cars, businesses and houses

        Really? I mean, I’m sure tons of undocumented people “own” property in the sense that they’ve paid for it and possess it. But that’s not really enough for what we’re talking about.

        I suspect you don’t live in California or another state where there are lots of undocumented immigrants ;)

        When I said “own”, I really meant “own” in the sense of having a formal deed or title. The system doesn’t (yet) require, say, car dealers to check the immigration status of people buying cars. If you do a quick web search, you should be able to find ample documentation of undocumented immigrants buying houses and even getting mortgages (eg using a TIN instead of an SSN, etc). and so on.

      • Bruce Wayne isn’t the type that would need the false documents given he was already a citizen and batman isn’t the one claiming an ownership.

        Somebody like supergirl on the other hand, who entered the U.S. during adolescence at the best, would have more difficulty. It would be easy even if she wanted to own property and not take the most straightforward method of having Clark Kent-who we can assume had citizenship organized much earlier (let’s just say that Kents organized some story that he was the adopted baby of an Amish couple that could not care for him and had yet to register his birth, or any number of scenarios)-retain actual ownership of all possessions while supergirl retains de facto ownership. While likely more than a million illegal immigrants live in the U.S. now, some of the quite successfully, remember that superwoman’s easy of establishment would be significantly easier, given her anglo-saxon appearance. Remember the irish immigration of the 1980′s, where perhaps tens of thousands-some estimates place it at over 100,000-Irish persons illegally entered the U.S., and lived successfully without legal citizenship, and without the extreme backlash seen in reaction to Mexican immigration.

  4. I’m not a legal authority myself, but in my layman’s view I would have thought that testifying in court would happen like this:
    http://lightbringer.comicgenesis.com/comics/20071126.jpg

    For those that don’t follow the link, when the hero is called to the stand to testify, his lawyer argues that he is protected as a confidential informant, and that he is protected by the fifth amendment from having to further identify himself, an act which would expose him to prosecution.

    The logic always seemed sound to me, but is it actually legally accurate?

    • Even if a superhero could avoid testifying under that theory–which strikes me as highly doubtful–you still have the problem of not having that testimony.

      But I can’t see that defense being effective at preventing a superhero, or any confidential informant for that matter, from being called to the stand.

      • I failed to make myself clear. The hero was called to the stand to testify; the legal arguments were to prevent him from having to identify himself.

    • The question is, who’s to say that I didn’t dress up in a Batman costume and go to the stand. That causes a big problem.

      Superman not so much because his disguise was humanity’s stupidity.

  5. I couldn’t find an email address or contact info, so I thought I’d drop this in as a comment:

    Jamie Madrox, the infamous Multiple Man who spawns duplicates of himself.

    Is he allowed to clock overtime if he has simultaneous hims on the job?

  6. Great post. I’m reminded of the shenanigans in Guerrilla Girls v. Kaz, Not Reported in F.Supp.2d, 2004 WL 2238510 (SDNY). In that case, there was a dispute amongst the various factions of the Guerrilla Girls, who were an artistic troupe comprising pseudonymous women in ape masks. The defendants did not appreciate being forced to reveal their identities in order to answer the plaintiffs’ complaint, and things got sillier when several of the Guerrilla Girls did not want to be identified or to take off their masks during the actual trial. The court was not particularly moved by these concerns.

    The New Yorker had an amusing article about it.

  7. I think an important fact to note is that Superman is Clark Kent

    Superman (Kal-El) puts on a costume to become Clark Kent.

    Bruce Wayne puts on a suit to become Batman.

  8. Responding to Tensai, I’d say that it would depend on his contract. Unless he had clauses stating he got paid more for doing more work, or for supplying more potential resources (manning an entire call center during a quiet period, etc), he probably wouldn’t get paid more.

    However, what’s really interesting is whether he could be contractually prevented from holding down multiple jobs simultaneously – i.e., are his multiple selves considered the same identity even though they can be in different places at the same time? Could he be considered a simultaneous resident of multiple states/countries? Would each of his selves pay separate taxes, or would all the incomes be combined to knock him into the highest tax bracket? Could he use the alibi of being in New York at the time he was accused of a crime in Los Angeles – even though he was in LA as well?

  9. Julian Ferguson

    Regarding the issue of allowing a witness whose identity cannot be verified:

    In an issue of She-Hulk, Spider-man sues J. Jonah Jameson for libel. When it is pointed out that the man in the Spider-man costume could be anybody, She-Hulk responds by performing a retinal scan through Spider-man’s mask using a device that can confirm the identities of current or former Avengers through a database. This allows Spider-man to be officially recognized as the superhero without revealing his secret identity. How would this factor in, assuming that the Avengers are affiliated with the government?

    • That’s an interesting question. I think it’s going to matter whether Spiderman is attempting to serve as a witness or a plaintiff, and whether Spiderman can come up with actual evidence that non-economic harm will result from him revealing his identity.

      As discussed above, the Sixth Amendment guarantees the right to confront one’s accuser, but an arguably definitive means of establishing one’s identity without revealing one’s name might get him on the stand.

      <a href="“>Rule 17(a) of the FRCP requires that actions be prosecuted in the name of the real party in interest. Pseudonyms and initials are almost always prohibited. Interestingly, we’ve got case law precisely on point here: Guerrilla Girls, Inc. v. Kaz, 224 F.R.D. 571 (S.D.N.Y. 2004). There, a group of performance artists attempted to bring an action under their fictional alter egos and were denied by the court, citing Rule 17(a), on grounds that damage to their professional careers was an insufficient justification for proceeding anonymously.

      So Spiderman’s libel suit is a bit of an interesting case. If Spiderman can demonstrate to the judge’s satisfaction that revealing his identity would cause a risk of violence or death to himself or others, a judge might just permit this to proceed. But I’m of the opinion that the threat would have to be both credible and imminent before a judge would give him a pass here.

      • Given that it’s Spider-Man, who’s had rather public altercations with any number of vindictive psychopaths, many of whom have announced unequivocally in the local media that they intend him harm and proceeded to carry out those threats in an equally public forum … I think that, just possibly, a judge might just give some credence to the notion.

        Of course, this is Spider-Man, which suggests a greater-than-average probability that the judge will be a vindictive jerk himself, and rule against him on the grounds that he already puts himself at risk by antagonizing these individuals in the first place, and revealing his identity would hardly increase that risk. That’s just the way Peter’s life rolls.

      • What about the much earlier TV hero The Lone Ranger? I recall that he did appear as a witness in a number of court trials in the show, but always masked. The TV actor, Clayton Moore, after his retirement never appeared in public without the mask. He also has the only Hollywood Star that lists both his actor name and his character name — Clayton Moore – The Lone Ranger.

  10. I was counsel in Anonymous v Delaware. You can file a motion to litigate under a fictitious name. Roe v Wade is probably the best known example.
    If opposing counsel doesn’t object, the court usually allows it. I’ve won one of these (lost the case on other grounds.) In another case our plaintiff Anonymous was improperly dismissed, but the case went forward under a named coplaintiff, brian majors. There are various ways to transact business without revealing one’s identity. I had one landlord where the property was held by a trust and he did business out of McDonalds, wasn’t even registered to vote, to avoid having a paper trail.Lawyers are often hired to act as strawmen, or that’s what sidekicks and butlers are for.
    You can file a “doing business as” form downtown for $2, or set up a delaware corporation for about $100, or a wyoming company for whatever that costs. These are fairly minor obstacles. However, if your life or your job depend on nobody ever finding out Joe Smith is the hooded avenger of evildoing, that’s trickier.

  11. I’m not surprised that this issue hardly ever comes up except in exceptional cases. I believe Batman is a duly deputized agent of Gotham police (courtesy of his special relationship with Commissioner Gordon), Iron Man is an official employee of Stark Enterprises, and Superman has extraordinary legal status courtesy of his being a citizen of every country on Earth. That gives them some sort of legal status in court, I guess. Some of the others have presumed diplomatic immunity courtesy of their being monarchs in their own realms (Aquaman and Namor, for instance) but the others, not so much.

    • I’ve got to point out, alas, that Batman’s deputized status and Superman’s global citizenship were written out of their stories retroactively more than 20 years ago.

      When you think about it, the idea of an officially deputized masked policeman is really creepy.

      • So when their status changes are “written out” does that mean they never happened?
        To your last point:
        The Lone Ranger was always masked and has been everyone’s ideal Western Hero for going on 74 years – since the mid-1930s.

  12. Here’s a question I’ve been wondering about for a few weeks, since Morrison’s big Twist Ending that set up the Batman, Incorporated premise:

    Bruce Wayne has not admitted that he’s the Batman. He has, however, admitted that he’s been funding the Batman under the table for most of his career.

    Now, the Batman is more than just someone who fends off purse snatchers and thwarts anti-social performance artists. He also does a lot of breaking and entering, assault and battery, and many other acts that would be egregious procedural violations for a police officer and, I suspect, actionable felonies for a private citizen. That’s the whole point of the mask.

    Has Bruce Wayne made himself liable for these actions? “Batman, Incorporated” had better have a huge legal staff backing them up.

    (Since this is Grant Morrison writing, I suspect we’ll see some of these issues addressed in the upcoming months.)

    Of course, there’s also Tony Stark. Forget Bruce’s little transgressions; for years, Tony exploited the fiction that Iron Man was an employee to commit what can only be described as acts of war, sabotage and terrorism, not only against foreign nations but against institutions of the United States Government itself.

    He then “solved” the problem by “firing” Iron Man and “hiring someone else” to wear the suit, while, of course, simply wearing it himself the whole time (with occasional pinch-hitting by James Rhodes).

    A few years ago, Tony went public as Iron Man, and, to my knowledge, has faced no legal repercussions whatsover.

    Bruce has established the fiction that the Batman — or, now, the Batmen — are employees. Tony has abandoned that fiction. I’d love to see an examination of these issues.

  13. I think Superman is a pretty open and shut case. Presumably, the Kents got him a birth certificate when they found his spaceship, so Clark Kent has a legal identity. Superman’s legal identity? Well, Superman basically told the whole world the truth-that he’s an alien from the planet Krypton. Presumably, to establish a legal identity, he probably just has to undergo lab tests to prove he actually is an extraterrestrial, and Congress sets up a naturalization process for extraterrestrial aliens (or, I guess, he can get naturalized under the normal system, but then we get into issues of how he entered the country legally and he has to prove his address in the U.S., which I don’t think he has one). But even as a non-citizen, he can still testify in court, as Cal-El, d/b/a Superman, Address-Fortress of Solititude, the Arctic.
    Bruce Wayne money laundering for Batman? Well, you just have to suspend disbelief that he never got caught, I guess. Maybe he’s just so spectacularly rich that he can do a good job of hiding it.

    • “Maybe he’s just so spectacularly rich that he can do a good job of hiding it.”
      …or…
      He’s just so fab wealthy that he doesn’t need to launder the money at all. He just uses new money.

      • Exactly. Since Superman doesn’t wear a mask and to all appearances *doesn’t have* a secret identity, the testimony issues become a little lighter for him than for Mr. Wayne. Not absent, of course, but lighter.

  14. Isn’t Superman still Clark Kent, super wimp? sans muscle suit? he doesn’t need a mask, no one thinks the wimp is the strong guy! Same as a mask, just not on the face.

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